Walton Land & Timber Co. v. Louisville & N.R. Co.
| Decision Date | 07 July 1916 |
| Court | Florida Supreme Court |
| Parties | WALTON LAND & TIMBER CO. v. LOUISVILLE & N. R. CO. |
Error to Circuit Court, Walton County; D. J. Jones, Judge.
Action by the Walton Land & Timber Company against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.
Syllabus by the Court
It is the duty of a common carrier of live stock to provide proper facilities for the loading, transportation, and delivery of the live stock which it undertakes to carry, and during the transportation of the stock to take such precautions as reasonable prudence suggests to insure a safe delivery.
The duties and responsibilities of a common carrier of live stock may be modified by contract between the carrier and shipper of the stock, and where the carrier relies upon such a contract to relieve it of its common-law liability in an action against it for damages resulting from its failure to transport the stock safely, it must plead and prove such contract.
In the absence of a contract limiting the liability of a common carrier of live stock, its liability is that of an insurer against such loss or damage as does not arise from the act of God, the public enemy, and those arising from the nature and propensities of the animals received for transportation against which due care could not provide.
In an action upon the case for damages against a railroad company for negligently injuring the plaintiff's live stock during transportation, a prima facie case is made for the plaintiff when he shows the delivery of the stock to the railroad in good condition, delivery by the railroad company at the point of destination in bad condition, and that neither the shipper nor his agent accompanied the stock in charge of the same during their transportation. In such case the burden is upon the railroad company to show that the loss or injury to the live stock did not result from negligence on the part of the railroad company, or that the cause of the loss or injury was within one of the excusatory exceptions recognized by law or provided for by the terms of the contract.
In an action against a railroad company for damages resulting from the negligent handling by the railroad company of live stock during transportation, it is proper for the plaintiff to show the bruised and scratched condition of the stock as tending to show rough handling by the defendant carrier.
A demurrer to evidence admits the truth of all the testimony and all reasonable deductions that can be made therefrom, and it should set forth all the evidence intended to be admitted thereby; the object of such a demurrer being to refer to the court the law arising from admitted facts.
COUNSEL S. K. Gillis, of De Funiak Springs, for plaintiff in error.
Daniel Campbell, of De Funiak Springs, and Blount & Blount & Carter of Pensacola, for defendant in error.
The plaintiff in error brought suit in the circuit court for Walton county against the defendant in error, to recover damages for the loss of a mule by death, which was shipped by the plaintiff in a car loaded with other live stock over the defendant's railroad from Horse Cave, Ky., to De Funiak Springs, Fla.
The amended declaration, which was filed in May, 1913, alleged that the defendant was a common carrier of live stock by rail, and that it undertook as a common carrier, for a valuable consideration paid by the plaintiff to the defendant, to transport from Horse Cave, Ky., to De Funiak Springs, Fla., by rail, 18 mules and 5 horses for the plaintiff; that the live stock was received by the defendant in good condition, and the defendant agreed to safely transport the same from Horse Cave, Ky., to De Funiak Springs, Fla., and to deliver the same to the plaintiff at De Funiak Springs, Fla., in good condition, and----
'that the defendant did not deliver all of the said mules in good condition at De Funiak Springs, Fla., as it had agreed to do but by its negligence in transporting the said stock so scarred, bruised, wounded, and injured one of the said mules that it died from the effects of the said wounds, scars, bruises, and injuries soon after it was taken from the cars of defendant at De Funiak Springs, Fla.'
The declaration alleged that the defendant was notified in writing of the claim, but had refused to pay, and the plaintiff demanded damages in a sum equal to the value of the mule and expenses of transportation and interest from the date of shipment, and 50 per cent. per annum upon the principal sum, and 15 per cent. of the amount recovered as attorneys' fees.
The defendant pleaded that it was not guilty; that the injury complained of was caused solely by the nature, disposition, and inherent viciousness of the stock shipped in the car with the mule; that the damage was caused by the negligence of the plaintiff; and that the injury complained of was contributed to by the negligence of the plaintiff. And an additional plea was filed that the defendant never undertook and promised as alleged in the declaration.
On the 4th day of June, 1913, the defendant filed by leave of the court an additional plea to the declaration, which was as follows:
'That the plaintiff, through its duly authorized agent, Henry Altsheler, entered into a written agreement, for a valuable consideration, with the defendant, through its duly authorized agent, J. E. Longsdon, whereby the plaintiff and the defendant agreed that should damage for which the said carrier may be liable occur, the value at the place and date of shipment should govern the settlement, in which the amount claimed shall not exceed for a stallion or jack $150; for a horse or mule $100; mare and colt together $100; yearling colt $50; cow and calf together $35; domestic horned animals $30 each; yearling cattle, each $15; calves, hogs, sheep, or goats, $5 each; chickens, ducks, and guinea fowls $2.50 per dozen, and turkeys $5 per dozen; which amounts it is agreed are as much as such animals as are herein agreed to be transported are reasonably worth.'
To this plea the plaintiff interposed a demurrer, but the record does not disclose whether this demurrer was sustained or overruled.
On the 14th day of January, 1914, the case came on for trial, jury was impaneled and sworn, and when the plaintiff had submitted its evidence, the defendant announced that it would demur to the plaintiff's evidence. The demurrer was filed. The plaintiff joined in the demurrer, which was sustained by the court. Thereupon the plaintiff's attorney 'moved the court that he would take a nonsuit,' which motion was granted and the jury ordered discharged.
About a year and a half afterwards, on July 9, 1915, the defendant moved the court for a judgment nunc pro tunc on the order sustaining the demurrer to the evidence, and upon the same day the court rendered the following judgment:
'This cause coming on to be heard upon the application of defendant's attorneys for a final judgment nunc pro tunc upon the order sustaining the demurrer to the evidence in this suit, due notice of the hearing having been given to the attorney for the plaintiff, upon considering the record and the argument of counsel for the respective parties:
'It is considered and adjudged by the court that the plaintiff recover nothing in said suit, and that the defendant go without day and recover its costs, amounting to $-----, and have execution therefor.
'Done and ordered at Chipley, Fla., this 8th day of July, A. D. 1915, because of the disqualification of Hon. A. G. Campbell, judge of the First judicial circuit. To which ruling of the court plaintiff excepts, and exception noted, and plaintiff given 60 days to present bill of exceptions.
D. J. Jones,
'Judge of the Ninth Judicial Circuit of the State of Florida.'
This judgment was duly entered.
At the trial E. W. Thorpe, the president of the plaintiff company testified that he bought the mule in Kentucky and shipped him to Horse Cave in that state, where he was put in a car of the defendant company on its tracks, which car was at the same time loaded with other stock purchased by Mr. Thorpe for his company. The witness testified that he could not say whether the agents of the railroad company were looking after the loading of the car, but there were a number of people assisting in loading and shutting the car; that the car was loaded with five horses and 18 or 20 mules and started from Horse Cave, Ky., to De Funiak Springs, Fla. Witness said he did not agree or have any contract with the Louisville & Nashville Railroad Company in regard to the shipment of that car of stock; that he did not contract with the company or any of its agents as to the value of the stock, nor did he authorize any one else to do so; the car was loaded on February 7, 1911; that the last time he saw the stock at Horse Cave, Ky., they were in the car; about four days afterward he saw the stock in the car at the stock pen in De Funiak Springs. Thereupon counsel for plaintiff asked the witness the following question: The defendant's counsel objected to the question so far as it related to any of the horses or mules other than the one for whose loss damage was asked. Plaintiff's counsel said it would be proper to show the condition of the other stock as tending to show how the car was handled by the defendant company. He offered to show that the other horses and mules in the car were more or less bruised and scratched, 'hair rubbed off and skin rubbed raw.' The objection was sustained, and the plaintiff excepted. The witness testified as to the value of the injured mule; that his qualities were 'good and gentle'; that ...
To continue reading
Request your trial